4
14.
In criminal law, the guarantor of the interest protected by law must answer under the form of nonfeasance -for not impeding injurious results, when the
guarantor could and should have done so. The jurisprudence of the Court has
included the concept of the guarantor, in terms that are conceptually close to those of
the legal systems in this regard: on the one hand, the existence of an obligation that
derives from a given source; on the other hand, the presence of a typical injurious
result, attributed to the obligor.
15.
Of course, the State must provide certain living conditions and conditions for
development to all persons under its jurisdiction. To do so –specifically, though not
exclusively, regarding security and justice- even constitutes a “raison d’être” of the
State, and therefore a reference point to assess the justification and efficiency of
public authority. Now, this obligation and the consequent responsibility become
extreme and much more intense, and they are even more enforceable, with all that
this entails, when those entitled to rights are at the mercy of the State –for example,
in a “total institution” where everything is regulated and supervised- and cannot, on
their own, exercise their rights and impede the harassment of those who abridge
them.
16.
In these hypotheticals there is a situation of weakness, helplessness or
vulnerability, due to procedures established by the State that place the lot of the
citizen in the hands of the agents of public authority. “In the instant case –reads the
judgment of the Inter-American Court- it has been proven that during March and
April 1996 the (accused) was subjected by the prison guards to sessions of physical
violence with the aim of obtaining his self-incrimination.” What protection does the
inmate have, in the darkness of the jail, in a small invisible city, against guards who
violate their mission?
17.
If in the hypothetical of criminal nonfeasance the position of guarantor derives
from the law or the contract, in that of detention it derives from a de jure situation
and a de facto one, stemming from the former. On one hand, the immense restriction
of liberty in procedural detention or in punitive incarceration; on the other hand, the
real situation generated by this restriction. Of course, the same applies to various
conditions in which the State undertakes the almost total responsibility for the
exercise of individual rights and protection of human dignity: that is the case in
centers where children, adolescents and youths are committed, in public security
institutions that fully control the individual’s activity, in health centers, especially
those in charge of caring for the mentally ill, and other similar ones.
18.
In my Concurring Opinion in the judgment issued in the Case of Hilaire,
Constantine and Benjamin, I referred to the role of the State as guarantor, which in
this matter entails: a) omitting all that might inflict on the individual privations
beyond those strictly necessary for purposes of the detention or fulfillment of the
conviction, on the one hand, and b) to provide everything that is pertinent –in
accordance with the applicable law- to ensure the aims of the incarceration: security
and social adjustment, regularly, on the other.
19.
In brief, it is necessary to continue insisting on the existence of that special
position of guarantor and on its consequences for the State and for the individual.
This encompasses behavior of the agents of the State –who systematically abridge
the rights of the inmates in the course of prison life-., through action or omission, as
shown by the Tibi and Panchito López cases, to which we must add another recent,
explosive situation in the Urso Branco prison, where violent deaths of inmates have
continued, despite the provisional measures ordered by the Inter-American Court.
20.
Reiteration of the violations, despite projects and promises, and even despite
actions that will yield medium- and long-term results, led me to point out in the
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